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Judgment
S.S. SHINDE, J
This Appeal is directed against the Judgment and order dated 2nd September, 2013, passed by the Additional Sessions Judge, Majalgaon in Sessions
Case No.47 of 2012, thereby convicting the accused/Appellant  Anil s/o Namdev Naiknavare for the offence punishable under Section 302 of the
Indian Penal Code (for short ""I.P. Code"") and sentencing him to undergo rigorous imprisonment for life and to pay fine of Rs.20,000/Â (Rupees
Twenty Thousand), and in default of payment of fine, to suffer rigorous imprisonment for nine months.
Criminal Writ Petition No.915 of 2014 is filed by the PetitionerÂAppellant praying therein to release him on bail considering the HIV disease
infected to him and his wife. Criminal Writ Petition No.1240 of 2014 is filed by the PetitionerÂAppellant praying therein that pending hearing and
disposal of Writ Petition No.915 of 2014, the PetitionerÂAppellant be released on bail.Â
The prosecution case, in brief, is as under:
A) The accused is a resident of village Renapuri, which is at a distance of 2 Kms. from Majalgaon town. Pursuant to partition, the accused and his
brother Ramesh Namdeo Naiknavare, who is informant in this case, started staying separately in the same house. The mother of the accused, namely
Kamalbai (PWÂ6) stays with the informant in the adjoining house of the accused. The wife and children of the accused reside with Kamalbai at
Renapuri.
B) As per the prosecution, the accused is addicted to liquor. He is quarrelsome in nature and on one occasion, he assaulted his mother Kamalbai. He
brings prostitutes to his house. One and half months prior to the incident dated 24th May, 2012, deceased Sarika started residing with the accused in
his house. The accused used to physically torture Sarika by demanding money. On 24th May, 2012, at 7.00 p.m., the accused started beating deceased
and due to which deceased was crying and shouting. The informant and his mother Kamalbai were at home. The informant and his mother did not
intervene on account of the terror of the accused. The informant found the said incident serious, and therefore he went to police station, Majalgaon
(City) and informed about the aforesaid fact to P.I. Gaidhani (PWÂ9).
Accordingly P.I. Gaidhani along with other police personnel namely, Khodve (PWÂ8), Kamble, Sasane, and Matin, rushed to the house of the
accused on motorcycles. At that time the accused was found sleeping in his house. However, upon noticing the police party, he ran away from the
spot. Police head constable Khodve and other police officials chased him and the accused was caught near the hospital of Dr. Sable on MajalgaonÂ‐
Gadhi road. Meanwhile, the informant took P.I. Gaidhani to another room in the house of the accused. The nude dead body of Sarika was found in the
house of the accused. She had suffered injuries on her head, right ear and her hand was dislocated from the shoulder. The injuries were also noticed
on her abdomen, knees and both the legs. Sarika was found dead. P.I. Gaidhani conducted inquest panchnama (ExhibitÂ31) of the dead body at the
spot, in presence of the panch witnesses. The dead body was referred for postÂmortem to Rural Hospital,
Majalgaon. Â
C) The police party, the informant and the accused then proceeded to police station. The informant lodged first information report (ExhibitÂ17/5),
which was recorded by P.I. Gaidhani. Vide Crime No.28 of 2012, the offence under Section 302 of the I.P. Code came to be registered. The further
investigation was carried out by P.I. Gaidhani. He then went to the spot and drawn spot panchnama (ExhibitÂ19) in presence of the panch witnesses.
He collected the blood found at the spot. Thereafter, P.I. Gaidhani has recorded the statements of the witnesses, including Kamalbai (PWÂ6) and
Nitin Choure (PWÂ7) on 24th May, 2012.
D) At the time of arrest of the accused on 24th May, 2012, clothes on his person were seized by P.I. Gaidhani by drawing a panchnama (Exhibit28/1)
in presence of panch witnesses Prakash Maske (PWÂ5) and Rahul Maske.
E) During the police custody, on 25th May, 2012, the accused expressed a desire to discover the weapon used in commission of the crime. The said
memorandum statement (ExhibitÂ21/1) was reduced into writing in presence of two panch witnesses, namely Shaikh Pasha (PWÂ3) and Dattatraya
Dukre. The accused also signed the same. Thereafter, the accused led the police party and the panch witnesses to his house and discovered a
wooden stick, which was kept hidden above the tinÂsheets of the kitchen of the house of the accused. The wooden stick was stained with blood and
also hair were found adhered on the stick. It was seized by drawing a discovery panchnama (ExhibitÂ22/1), in presence of panch witnesses.
F) Pursuant to the postÂmortem conducted by Dr. Rudrawar (PWÂ4), he issued a provisional medical certificate on 25th May, 2012. In postmortem
report (ExhibitÂ26), the medical officer opined that the death has occurred on account of cardio respiratory arrest owing to hemorrhagic and
neurogenic shock as a result of multiple injuries, including the head injury. The viscera was preserved for chemical analysis.
G) During the investigation, P.I. Gaidhani came to know that the name of the deceased was ""Sarika"". Her further details were not known. However, it
was revealed to him that she was a prostitute. In order to reveal her complete identity, wireless messages were broadÂcasted to the adjoining
Districts.
H) On 6th June, 2012, the viscera of the deceased as well as the blood found at the spot, the plain and blood stained hair of the deceased obtained at
the time of conducting the inquest panchnama, the blood stained clothes seized from the accused at the time of his arrest, the blood sample of the
accused, wooden stick stained with blood and hair discovered by the accused, were sent for chemical analysis through police constable Sasane along
with communications (ExhibitÂ40 and 41) respectively. The C.A. reports dated 14th March, 2013 (ExhibitsÂ42 to 44) were included in the papers.
I) Upon completion of the investigation, as there was sufficient evidence against the accused, P.I. Gaidhani filed chargeÂsheet in the Court of
J.M.F.C., Majalgaon. In due course, learned J.M.F.C., committed the case to the Court of Sessions.
J) A charge for the offence punishable under Section 302 of the I.P. Code was framed against the accused, and the same was explained to him.
Accused pleaded not guilty and claimed to be tried, with the defence of total denial.
After recording the evidence and
conducting full fledged trial, the trial Court convicted the accused for the offence punishable under Section 302 of the I.P. Code and sentenced him to
undergo rigorous imprisonment for life and to pay a fine, as aforeÂstated. Hence this Appeal by the accused.
Heard learned counsel appearing for the Appellant and learned A.P.P. appearing for the State, at length. Learned counsel appearing for the
Appellant, in support of his submissions, placed reliance upon the exposition of law in the case of K. Venkateshwarlu vs. State of A.P.
A.I.R. 2012 S.C. 2955, and in the case of Manisha w/o Ravindra Humbe and another vs. the State of Maharashtra 2017 ALL M.R.(Cri) 1215. With the
able assistance of learned counsel appearing for the parties, we have carefully perused the entire notes of evidence, so as to find out whether the
findings recorded by the trial Court are in consonance with the evidence brought on record or otherwise.
The prosecution has examined in all nine witnesses. PWÂ1 Ramesh Namdev Naiknavare, is the brother of the accused, who is informant. PWÂ2
Shaikh Jamil Shaikh Babu is a panch to the spot panchnama (ExhibitÂ19). PWÂ3 Shaikh Pasha Shaikh Osman is the panch to the recovery
panchnama of wooden raft. PWÂ4 Dr. Gajanan Rudrawar is the medical officer who has carried out the postmortem examination over the dead body
of Sarika. PWÂ5 Prakash Dadarao Maske is a panch to seizure panchnama of clothes of the accused. PWÂ6 Kamal Namdev Naiknavare is the
mother of the accused. PWÂ7 Nitin Bhagwat Choure is the person whose parents are residing in the neighbourhood of the accused. PWÂ8 Pandit
Karbhari Khodve is police constable, who deposed that he chased and caught the accused. PWÂ9 Dinkar Bhika Gaidhani, police inspector, is the
investigating officer.
First of all we will examine the evidence of PWÂ4 Dr. Gajanan Anantrao Rudrawar. He deposed that on 25th May, 2012, he was on duty as a
Medical Officer at Rural Hospital, Majalgaon. On that day police station, Majalgaon (City) referred dead body of a female namely, Sarika for the
purpose of postÂmortem. He had carried out the autopsy of the dead body. He further deposed that, he noticed following external injuries on the
person of Sarika:
1] C.L.W.s
(a) Later to the lateral canthus of right eye, 7 X 2 X 3 cm.
(b) Right sided temporal region of scalp behind right ear, 8 X 2 X 3 cm.
(c) Laceration of pinna right ear in full thickness, 4 X 1 X 1 cm.
(d) Left temporal region of the scalp, 6 X 3 X 3 cm.
(e) Right occipital region of scalp 5 X 3 X 3 cm.
. PWÂ4 Dr. Gajanan Rudrawar further deposed that the aforesaid injuries can be caused on account of assault by a hard and blunt object. The
injuries were caused within six hours. He further deposed that he noticed following injuries on the person of Sarika:
2] Contusions:
(a) Right arm middle 1/3rd 12 X 10 cm. (b) Right forearm anterior aspect, 5 X 5 cm.
(c) Left side of the face, 6 X 6 cm.
(d) Shin of the tibia right side 4 X 4 cm.(e) Right thigh lower 1/3rd anterior aspect, 6 X 6 cm.
(f) Right calf 6 X 6 cm., right thigh posterior aspect, 6 X 6 cm., lateral aspect 5 X 3 cm.
(g) Left thigh lateral aspect 10 X 4 cm.(h) Left leg lateral aspect, upper 1/3rd 8 X 4 cm.
(i) Left buttock whole,
(j) Right buttock 8 X 4 cm.
(k) Left arm upper 1/3rd lateral aspect 8 X 4 cm.
. PWÂ4 Dr. Gajanan Rudrawar further deposed that the injuries aforesaid can be caused by hard and blunt object. Except aforesaid injury (c), other
injuries were caused within 48 hours, whereas the injury (c) was caused within 6 hours of the postÂmortem. He further deposed that he noticed
following injuries on the person of Sarika:
3] Superficial to deep burns:Â
(a) Left breast upper outer quadrant 6 X 3 cm.
(b) Left groin 12 X 2 cm.
(c) Supra pubic region of abdomen 16 X 4 cm.
. PWÂ4 Dr. Gajanan Rudrawar further deposed that he noticed following injuries on external examination/palpation as fractures:
1] Fracture right temporal bone mastoid region corresponding to injury No.1 b.
2] Fracture of right occipital bone, corresponding to injury 1 e.
3] Fracture of right humerus corresponding to injury 2 a.
4] Fracture of right ramus of mandible corresponding to injury 2 c.
. PWÂ4 Dr. Gajanan Rudrawar further deposed that he noticed following internal injuries during postÂmortem:
1] Fracture of temporal bone in mastoid region right side, 4 X 2 X 2 cm.
2] Fracture of occipital bone on right side, 3 X 2 X 2 cm. 3] Meninges were hemorrhagic.
4] Laceration with surrounding contusion seen in right temporal and right occipital lobes and brain. Intra cranial bleeding present.
PWÂ4 Dr. Gajanan Rudrawar further deposed that pursuant to postÂmortem, he came to the conclusion that the death was caused ""on account of
neurogenic and hemorrhagic shock due to head injury and associated multiple injuries"". He preserved the viscera for the purpose of chemical analysis.
He had also taken blood samples for chemical analysis. On 25th May, 2012, he prepared postÂmortem notes (ExhibitÂ26). The postÂmortem notes
are in his handwriting and bears his signature. He further deposed that the injuries detailed above by him were anteÂmortem. The injuries can be
caused by a wooden rafter.
During the course of crossÂexamination, PWÂ4 Dr. Gajanan Rudrawar stated that the dead body was brought in the hospital at about 10.00 a.m.
on 25th May, 2012. On the basis of edges of the injuries the probable weapon can be opined. He did not mention about the edges and margins of the
injuries in the postÂmortem report. He did not mention the nature and direction of the injuries in the report. The age of the injury can be determined on
the basis of its colour. In respect of burn injuries, he did not specify the age. He denied the suggestion that the Contused Lacerated Wounds
mentioned in the report can be caused by more than one weapon. He stated that the said injuries are possible by a single weapon also. He denied the
suggestion that he did not perform the postÂmortem carefully and diligently.
Thus, upon careful perusal of the evidence of PWÂ4 Dr. Gajanan Rudrawar, it is clear that Sarika received multiple injuries like contused
lacerated wounds, burn injuries, fracture injuries including the head injuries. Sarika received as many as six fracture injuries. The medical officer
opined that ""death was caused on account of neurogenic and hemorrhagic shock due to head injury and associated multiple injuries"". Thus, from the
perusal of the evidence of PWÂ4 Dr. Gajanan Rudrawar, the injuries mentioned in the postÂmortem notes, it is clear that death of Sarika was
homicidal.
There is no doubt that Sarika died homicidal death. But real question is  who is author of the injuries caused to Sarika? To find out the same, now
we will examine the evidence of other prosecution witnesses. PWÂ1 Ramesh Namdeo Naiknavare is the informant in this case. He deposed that the
accused is his elder brother.
Since last 10 to 12 years accused is residing separately from him. They however, stay in the same house, which is partitioned. The accused had a son
and two daughters. The accused resides with his wife and children. The wife of the accused is from village Rajegaon. He deposed that he did not
know whether the accused is addicted to the vice of liquor. He further deposed that it did not happen that the deceased was addicted to liquor and he
has kept Sarika with him and that he committed her murder on 24th May, 2012. Thus, it is significant to note that this witness, who is informant, turned
hostile and did not support the prosecution case.Â
. As this witness has retracted from his first information report, with the permission of the trial Court, the learned A.P.P. crossÂexamined him. During
the course of crossÂexamination by learned A.P.P., PWÂ1 Ramesh Naiknavare has admitted that he had been to Majalgaon (City) police station on
24th May, 2012. He denied the suggestion that police authorities recorded his first information report as per his instructions and thereafter he signed it
after going through it. He denied all further suggestions put to him.
Thus, it is clear from the perusal of entire oral evidence of PWÂ1 Ramesh Naiknavare that he turned hostile and did not support the prosecution
case. Therefore, the evidence of this witness is not at all useful for the prosecution. The first information report itself is not proved.
PWÂ2 Shaikh Jamil Shaikh Babu has deposed that on 24th May, 2012, police authorities called him at the house of accused for the purpose of
drawing a panchnama. There were two rooms in the house. He noticed that the utensils and the household articles were lying on the floor. Thereafter
police prepared the spot panchnama in his presence. He and another panch witness Pramod Pawar signed the said panchnama (ExhibitÂ19). It bears
his signature and the contents thereof are true and correct.
. During the course of his crossÂexamination, PWÂ2 Shaikh Jamil has stated that Renapuri is at a distance of about 2 Kms., from his house. At the
time of conducting the panchnama, he was present at his Restaurant, which is at Mouje Brahamagaon on MajalgaonÂGadhi road. Renapuri is at a
distance of about half Kilometer away from his Restaurant. The police were present near Sambhaji Chowk on Gadhi road. He signed the panchnama
at the Sambhaji Chowk only.
Thus, evidence of this witness PWÂ2 Shaikh Jamil is not at all useful to the prosecution. Though he is a panch witness to the spot panchnama,
careful perusal of his crossexamination reveals that, he has not visited the spot at the concerned time, and he has signed on the spot panchnama at
Sambhaji Chowk on Gadhi road, which is about half Kilometer away from the spot of incident.
The prosecution has examined PWÂ3 Shaikh Pasha Shaikh Osman. He deposed that he was called by the police authorities on 25th May, 2012, at
some hotel on Mondha. Police obtained his signatures on blank forms at one place. He further deposed that, it did not happen that on the said day
accused Anil Namdeo Naiknavare made a statement in his presence to discover a wooden raft used in furtherance of the offence and it was recorded
by the police authorities in presence of the panch witnesses, including him. Thus, this witness also turned hostile and did not support the prosecution
case. Thus a memorandum statement and discovery of the weapon allegedly used in the crime, at the instance of the accused is not all proved by the
prosecution.
The prosecution has examined PWÂ5 Prakash Dadarao Maske, who is a panch witness to the seizure of clothes of accused. However, this
witness also turned hostile and did not support the prosecution case.
The prosecution has examined PWÂ6 Kamal w/o Namdeo Naiknavare, who is mother of the accused. She deposed that she did not know about
any incident dated 24th May, 2012. It did not happen that the accused committed murder of a lady called ""Sarika"" on 24th May, 2012, at about 7.00
p.m. Thus, it is clear from the perusal of entire oral evidence of PWÂ6 Kamal Naiknavare that she turned hostile and did not support the prosecution
case. Though learned A.P.P, with the permission of the trial Court, crossÂexamined PWÂ6 Kamal Naiknavare, nothing useful to the prosecution has
been elicited.
The prosecution has examined PWÂ7 Nitin Bhagwat Choure. He deposed that he did not know about any incident dated 24th May, 2012, having
involvement of the accused. He further deposed that it did not happen that on 24th May, 2012, the accused committed murder of his paramour Sarika
in his house. Thus, this witness also turned hostile and did not support the prosecution case. Therefore the oral evidence of this witness is also not
useful to the prosecution.
PWÂ8 Pandit Karbhari Khodve has deposed that he was working in the capacity of police head constable at police station, Majalgaon (City). On
24th May, 2012, Mr. Gaidhani was the police inspector at the said police station. On that day, he himself and other police constables namely, Kamble,
Sasane, Shaikh and P.I. Gaidhani were on duty. At about 10.30 a.m., Ramesh Namdeo Naiknavare (informant) came to the police station and
intimated that his brother i.e. the accused was assaulting to his keep in his house. Accordingly, P.I. Gaidhani, witness himself, Kamble, Sasane and
Shaikh along with the informant, went to Renapuri at the house of the accused. When they reached at the house of accused, they noticed that there
were two rooms in the house. In the first room, they saw the accused sleeping and in the second adjoining room dead body of Sarika was lying. Upon
hearing their noise, the accused came out of the room and suddenly ran away towards the hospital of one Dr. Sable. They all chased and caught the
accused in front of Dr. Sable hospital. They brought him to the police station and handed him over to the station inÂcharge. Again they all along with
P.I. Gaidhani, went to the spot. They saw that the dead body of Sarika was lying on a bedÂsheet. He noticed head injuries, her right hand was
fractured from shoulder. The dead body was nude. The mother of the accused, namely, Kamalbai had come to the spot. P.I. Gaidhani then
conducted inquest panchnama. Thereafter the body was referred for postÂmortem to Rural Hospital, Majalgaon. On 26th May, 2012, the dead body
was handed over to Mr. Kadam, who was employed with Municipal Council, Majalgaon, for cremation. He further deposed that his statement was
recorded by the investigating officer.
During the course of crossÂexamination, PWÂ8Â Pandit Khodve has stated that he reported for duty at about 9.00 a.m., on 24th May, 2012. On
that day he was the Beet Amaldar of RenapuriShelapuri villages. When Ramesh Naiknavare (informant) came to the police station, he first met P.I.
Gaidhani. He did not know about the conversation between P.I. Gaidhani and the informant. As per the directions of P.I. Gaidhani, he himself along
with Kamble, Sasane, Shaikh and the informant proceeded to Renapuri. Renapuri is at a distance of 2 Kms. from police station. Sambhaji Chowk is
situated on MajalgaonÂGadhi road at a ""T"" point from where a road proceeds towards the South, which is a byÂpass. Gadhi road is towards West.
He did not know that at a distance of about 100 ft. from Sambhaji Chowk, ""Moreshwar"" hotel run by the accused is situated on North side of the road.
From the Gadhi road, the house of the accused is at a distance of about 2000 ft., on the cement road on Western side of it. The door of the first room
of the accused opens on West and that of the another room opens on North. There was a cot in the first room, where they saw the accused sleeping.
They did not notice the household kitchen utensils in the said room. He stated that there are three rooms in the house of the accused. He further
stated that a room was adjoining the first room having an entrance towards North with only a frame and without door panels. Thereafter there is an
open space and its width may be about 5 to 10 ft. Thereafter there is a room on East, where the dead body was lying. There is a ground in front of the
house, on North side. There are perennial shrubs and trees in the ground. He did not notice the household kitchen articles in the room where the dead
body was found. The dead body was taken in custody on 24th May, 2012. He knew the accused since a year before the incident. It was on account
of his arrest in respect of the offence punishable under Section 326 of the I.P. Code. The accused was not engaged in any gainful occupation.
Thus, evidence of police head constable PWÂ8 Pandit Khodve shows that, when he visited the spot of incident, the dead body of Sarika was lying
in one room and in another room the accused was found sleeping. Both the rooms had separate doors and both the doors open at different directions.
Considering the overÂall situation, it is difficult to accept that accused committed murder of Sarika and then he went in another room and slept there.
In such situation, the natural conduct of the accused would be to go far away from the spot of incident. The evidence of PWÂ8 Pandit Khodve shows
that, when accused noticed the presence of police party in his house, the accused ran away from his house. In this respect, it is argued on behalf of
the accused that previously one crime was registered against the accused and when accused saw that police party had visited his house, due to fear of
arrest in previous crime, the accused ran away.
PWÂ9 Dinkar Bhika Gaidhani, police inspector, is the investigating officer, who deposed about the manner in which he has carried out the
investigation.
Thus, upon careful perusal of the entire evidence on record, it is clear that PWÂ1 Ramesh Naiknavare, who is the informant in this matter, turned
hostile and did not support the prosecution case and therefore the first information report itself is not proved. PWÂ2 Shaikh Jamal who is panch to the
spot panchnama, also turned hostile and did not support the prosecution case. He has specifically admitted in his crossÂexamination that he signed the
spot panchnama in Sambhaji Chowk on Gadhi road, which is far away from the spot of incident. PWÂ3 Shaikh Pasha, is a panch to the seizure
panchnama of the wooden raft, the alleged weapon used for committing injuries on Sarika. He also turned hostile and did not support the
prosecution case. Therefore discovery of the alleged weapon at the instance of the accused, which was used in the crime, is also not proved.
PWÂ5 Prakash Maske is a panch to the seizure panchnama of the clothes of the accused which were on the person of the accused at the time of
alleged incident. This witness also turned hostile and did not support the prosecution case. PWÂ6 Kamal Naiknavare, is the mother of the accused
and she is the star witness of the prosecution, but she also turned hostile and did not support the prosecution case.
It is the case of the prosecution that during investigation police recorded statement of PWÂ7 Nitin Choure wherein he stated about the
involvement of the accused in the crime. However this witness PWÂ7 Nitin Choure also turned hostile and did not support the prosecution case. Thus,
the star witnesses of the prosecution like informant PWÂ1 Ramesh Naiknavare, PWÂ6 Kamal Naiknavare, mother of the accused and PWÂ7 Nitin
Choure, whose parents are residing near the house of accused, all turned hostile and did not support the prosecution case. Thus, it is clear that except
the police head constable PWÂ8 Pandit Khodve and PWÂ9 Dinkar Gaidhani, who the investigating officer is in this case, there is absolutely no
evidence against the accused. None of the witness has stated that deceased Sarika was last seen in the company of accused Anil within the proximity
of time and date of the incident.
The oral testimony of PWÂ8 Pandit Khodve, police head constable shows that when accused saw that police has visited his house, the accused
ran away from the house. The said conduct of the accused cannot be said to be abnormal, and any person after noticing that police had visited his
house, his natural conduct would be, to go away from the police due to fear of involvement in the crime. Therefore, the said circumstance cannot be
used as a circumstance against the accused. As observed earlier, it is the case of the prosecution that when the police party visited the spot of
incident, the dead body of Sarika was lying in one room of the house, and in another room the accused was sleeping. It is not the case of the
prosecution that accused is a person of unsound mind. The prosecution has not proved the circumstance beyond reasonable doubt that if at all the
accused had committed murder of Sarika, how he was found sleeping in another room instead of running away from the spot of incident, when police
party visited the said spot. The prosecution has not proved the circumstance beyond reasonable doubt that, how the doors of both the said two rooms
were kept open, when it is the case of prosecution that in one room there was dead body of Sarika and in another room the accused was found
sleeping.
Admittedly, in the present case, there is no eye witness and the entire prosecution case is based upon circumstantial evidence. None of the
prosecution witness has stated that he had actually seen the accused while he was assaulting Sarika. As observed earlier, all the star witnesses of the
prosecution, turned hostile and did not support the prosecution case. Even the panch witnesses also turned hostile and did not support the
prosecution case. Therefore, there is no eye witness to the incident and the entire prosecution case is based upon circumstantial evidence only. From
the perusal of entire evidence on record, we are of the opinion that the chain of circumstances on which reliance has been placed by the prosecution,
has not been established beyond reasonable doubt by the prosecution. If all circumstances are taken together and examined in the light of evidence
brought on record, they do not form complete chain. The Supreme Court in the case of Shankarlal Gyarasilal Dixit vsw. State of Maharashtra
1981 (2) SCC 35 reported in paras 13, 31 and 32 held thus :Â
“13. Since this is a case of circumstantial evidence, it is necessary to find whether the circumstances on which the prosecution relies are
established by satisfactory evidence, often described as 'clear and cogent' and secondly, whether the circumstances are of such a nature as to exclude
every other hypothesis save the one that the appellant is guilty of the offences of which he is charged. In other words, the circumstances have to be of
such a nature as to be consistent with the sole hypothesis that the accused is guilty of the crime imputed to him.
It causes us some surprise that the learned Additional Sessions Judge, Akola, who tried the case, has not shown any awareness of the
fundamental principle which governs cases dependent solely on circumstantial evidence. Nowhere in his judgment has the learned Judge alluded,
directly or indirectly, to the principle that in a case of circumstantial evidence, the circumstances on which the prosecution relies must be consistent
with the sole hypothesis of the guilt of the accused. It is not to be expected that in every case depending on circumstantial evidence, the whole of the
law governing cases of circumstantial evidence should be set out in the judgment. Legal principles are not magic incantations and their importance lies
more in their application to a given set of facts than in their recital in the judgment. The simple expectation is that the judgment must show that the
finding of guilt, if any, has been reached after a proper and careful evaluation of circumstances in order to determine whether they are compatible
with any other reasonable hypothesis.
The High Court, it must be said, has referred to the recent decisions of this Court in Mahmood v. State of U.P. and Chandmal v. State of
Rajasthan in which the rule governing cases of circumstantial evidence is reiterated. But, while formulating its own view the High Court, with respect,
fell into an error in stating the true legal position by saying that what the court has to consider is whether the cumulative effect of the circumstances
establishes the guilt of the accused beyond the “shadow of doubtâ€. In the first place, 'shadow of doubt', even in cases which depend on direct
evidence is shadow of “reasonable†doubt. Secondly, in its practical application, the test which requires the exclusion of other alternative
hypotheses is far more rigorous than the test of proof beyond reasonable doubt.â€
The Supreme Court in the aboveÂsaid Judgment held that, in a case of circumstantial evidence, the circumstances on which the prosecution relies
must be consistent with the sole hypothesis of the guilt of the accused. In the test as to whether the cumulative effect of the circumstances establishes
the guilt of the accused beyond the `shadow of doubt', the `shadow of doubt', even in cases which depend on direct evidence, is shadow of
`reasonable' doubt. Secondly, in its practical application, the test which requires the exclusion of other alternative hypotheses is far more rigorous than
the test of proof beyond reasonable doubt. As already observed, in the present case the prosecution has not proved some of the circumstances beyond
reasonable doubt and there is no complete chain of the circumstances, which would lead to only hypothesis of the guilt of the accused.
In the present case, as already observed, there is no direct evidence against the accused. There is only suspicion against the accused that he might
have committed the alleged crime. In the case of State of Punjab V/s Bhajan Singh and othersA IR 1975 SC 258, the Supreme Court held that,
suspicion, by itself, however strong it may be, is not sufficient to take the place of proof and warrant a finding of guilt of the accused.Â
In the light of discussion in foregoing paragraphs, we are of the considered view that the entire prosecution case rests upon the circumstantial
evidence and the evidence brought on record by the prosecution is not cogent, sufficient and convincing so as to prove the offence against the
Appellant beyond reasonable doubt.
The Supreme Court, in case of Kali Ram V/s. State of Himachal Pradesh AIR 1973 SC 2773 observed as under :
“Another golden thread which runs through the web of the administration of justice in criminal cases is that if two views are possible on the
evidence adduced in the case one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused
should be adopted. This principle has a special relevance in cases wherein the guilt of the accused is sought to be established by circumstantial
evidence.â€
The prosecution has utterly failed to brought on record any positive act on the part of the appellant to connect him with the crime. The case of the
prosecution is surrounded by suspicious circumstances. The possibility of somebody killing Sarika at another place and keeping her dead body in the
room of the house of the accused, cannot be ruled out. When at the spot of incident there were two rooms, both the rooms had separate doors and
doors of both the rooms were found open, and in one room dead body of Sarika was lying and in another room accused was found sleeping. In such a
situation, it cannot be convincingly said that accused alone and alone is responsible for the death of Sarika. Therefore, an inevitable conclusion is
that the Appellant is entitled for the benefit of doubt. Hence we pass the following order:Â
(I) The Criminal Appeal is allowed.
(II) The impugned Judgment and order dated 2nd September, 2013, passed by the Additional Sessions Judge, Majalgaon in Sessions Case No. 47 of
2012, convicting and sentencing the Appellant  Anil s/o Namdev Naiknavare for the offence punishable under Section 302 of the Indian Penal Code,
is quashed and set aside.
(III) The Appellant is acquitted of the offence punishable under Section 302 of the Indian Penal Code. Fine amount, if deposited as per the impugned
Judgment and order, be refunded to the Appellant.
(IV) The Appellant  Anil s/o Namdev Naiknavare is in jail, he be set at liberty forthwith, if not required in any other case.
(V) The Appellant shall furnish Personal Bond of Rs.15,000/Â and surety in like amount under Section 437ÂA of the Code of Criminal Procedure,
before the concerned trial Court at Majalgaon.
(VI) In view of the order passed in Criminal Appeal, nothing survives for consideration in both the Writ Petitions. Hence, Criminal Writ Petition
No.915 of 2014 and Criminal Writ Petition No.1240 of 2014 stand disposed of, accordingly.
(VII) Since, Mr.S.B. Chavan, learned counsel is appointed to prosecute the cause of the Appellant/Petitioner  Anil s/o Namdev Naiknavare, his fees
and expenses are quantified at Rs.7,000/ (Rupees Seven Thousand).