Karimshaha s/o Biramshaha vs State of Maharashtra

Exception is taken to the judgment and order dated 01-11-2003 rendered by the learned Ad hoc Additional Sessions Judge, Washim in Sessions Trial 128/2002, by and under which the appellant-accused is convicted for offence punishable under Section 304 Part-II of the Indian Penal Code (" IPC " for short) and is sentenced to suffer

rigorous imprisonment for ten years and to payment of fine of Rs.5,000/-.

Heard Ms. Ankita Sarkar, learned Counsel for the accused and Shri N.R. Patil, learned Additional Public Prosecutor for the respondent-State.

The accused was charged with having murdered his wife Najimabee after seven years of marriage. The prosecution case as is unfolded during the course of the trial is thus :

The accused and Najimabee are blessed with two sons from the wedlock. Najimabee was treated well for period of five years or thereabout. The accused suspected her character and started ill-treating Najimabee, which ill-treatment she used to narrate to her parents. Two months prior to the fateful day, Najimabee left her matrimonial home with her sons since she was assaulted by the accused. The accused went to her parental home to escort her back to the matrimonial home, the in-laws of the accused were reluctant to send Najimabee with the accused. The accused persuaded his in-laws to send Najimabee to her matrimonial home alongwith the accused.

On the next day i.e. on 13-9-2002 Najimabee's parents learnt that she was admitted in Manora Rural Hospital due to a head injury. The hospital authorities conveyed the information to Manora Police Station.

Assistant Police Inspector Mrs. Ashok Bhairao went to the hospital and requisitioned the Special Executive Magistrate for recording Najimabee's dying declaration. However, Najimabee was not in a position to give statement. One of the two sons of Najimabee and the accused, who were at her bed side in the hospital, was crying that the accused assaulted his mother with an iron stem. Najimabee was referred to Akola Civil Hospital for further treatment. Assistant Police Inspector Mr. Ashok Bhairao lodged first information report against the accused at Manora Police Station on the basis of which offence punishable under Section 307 of the IPC was registered against the accused. Najimabee expired while undergoing treatment at Akola Civil Hospital. Offence under Section 302 of the IPC was registered.

Investigation ensued, upon completion of which charge-sheet under Section 302 of the IPC was submitted in the Court of Judicial Magistrate First Class, Mangrulpir, who committed the proceedings to the Sessions Court. The learned Sessions Judge framed charge (Exhibit

4) under Section 302 of the IPC. The accused abjured guilt and claimed to be tried. The defence is of total denial.

Ms. Ankita Sarkar, learned Counsel submits that indubitably the conviction rests on circumstantial evidence. In view of the failure of the prosecution to examine the sons of the deceased, who were at the bed side of Najimabee, and one of whom according to Assistant Police Inspector Ashok Bhairao and P.W.12 Subhash Darode, was crying out that the accused beat his mother with an iron stem. The submission is that circumstantial evidence can be the basis of conviction only if the chain of circumstances is so complete as would rule out every hypothesis except the guilt of the accused. The learned Counsel would submit, relying on the judgments of the Hon'ble Apex Court in Hanumant son of Govind Nargundkar v. State of Madhya Pradesh reported in 1952 SCR 1091, Sharad Birdhi Chand Sarda v. State of Maharashtra reported in (1984) 4 SCC 116, C. Chenga Reddy and others v. State of A.P . reported in (1996) 10 SCC 193 and Kuna @ Sanjaya Behera v. State of Odisha reported in (2018) 1 SCC 296, that the prosecution has not proved circumstances of conclusive nature which would exclude the possibility of the innocence of the accused. Ms. Ankita Sarkar would further submit, relying on the judgments of the Hon'ble Apex Court in Khatri Hemraj Amulakh v. The State of Gujarat reported in (1972) 3 SCC 671 and Ritesh Chakarvarti v. State of M.P . reported in (2006) 12 SCC 321 that the

failure of the prosecution to examine material witnesses is fatal.

In rebuttal, Shri N.R. Patil, learned Additional Public Prosecutor would submit that the fact that the deceased suffered injuries in her matrimonial home and the recovery of the iron stem which was blood stained is sufficient to complete the chain of circumstances excluding every hypothesis other than the guilt of the accused.

P.W.1 Majidsha and P.W.2 Abidabi, the father and mother respectively of the deceased are examined to bring on record that the accused ill-treated Najimabee since he suspected her character. P.W.1 and P.W.2 have deposed that Siddik, the son of Najimabee disclosed that the accused assaulted Najimabee with an iron rod. P.W.3 Mahemood, the nephew of the accused, did not support the prosecution. Nothing is elicited in the cross-examination to assist the prosecution. P.W.3 was examined to prove the disclosure made by Siddik that his mother Najimabee was assaulted by the accused. P.W.4 Rafiq states that the accused came to his house and disclosed that Najimabee was in a serious condition. P.W.4 Rafiq, accompanied by the accused, Mahemood and the two sons Siddik and Shafiq, shifted

Najimabee to Manora Hospital in his auto-rickshaw. P.W.5 Dr. Nandu Nande examined Najimabee at the Rural Hospital Manora and referred her to the Civil Hospital, Akola. P.W.6 Dr. Vilas Sonowane, who was then attached to Civil Hospital, Akola has deposed that Najimabee was not in a fit condition to record the dying declaration. P.W.7 Babusing Jadhav, who is examined to prove the statement under Section 27 of the Indian Evidence Act and the seizure of the iron stem, did not support the prosecution although he admitted his signatures on the memorandum and seizure panchanama (Exhibit 25 and Exhibit 26).

P.W.8 Shriram Parande, the other panch to the memorandum and seizure panchanama (Exhibit 25 and Exhibit 26) also did not support the prosecution. P.W.9 Ashok Bhairao, then attached to Manora Police Station is the investigating officer who states that Najimabee's son Siddik who was at her bed side was telling the public at large that the accused assaulted his mother with a stem. P.W.9 has proved the memorandum (Exhibit 25) and the seizure panchanama (Exhibit 26).

The deposition is that the iron stem was recovered and seized from the tin roof of the house of the accused pursuant to the memorandum under Section 27 of the Indian Evidence Act. In the extensive cross-examination, P.W.9 has denied the suggestion that investigation revealed that the cause of injury suffered by Najimabee was a hard and

blunt object which fell on her head. The suggestion given to P.W.9 is that Najimabee tried to enter the hut in a hurry, her head dashed against the door and the resultant impact destabilized the fragile hut and some hard and blunt object fell from the roof on her head. It is elicited in the cross-examination that the signature of the accused was not obtained on the memorandum panchanama. P.W.10 is Dr. Rekha Gawai, who conducted the autopsy on the dead body of Najimabee, has proved the post-mortem report (Exhibit 40). The external and internal injuries could be caused by hard and blunt object, is the deposition. It is elicited in the cross-examination that the head injuries could be caused due to fall of hard and blunt object on the head from a distance of 3 feet. P.W.10 admits that no fracture was detected in the skull.

P.W.11 Thakursingh Chavan, who was examined to prove that the son of the deceased disclosed that the accused assaulted his mother Najimabee, did not support the prosecution. No material is brought on record in the cross-examination to assist the prosecution.

P.W.12 Subhash Darode, who is a journalist, has deposed that when he visited Manora Rural Hospital to meet his brother who was hospitalized, two children were weeping by the bed side of a lady.

The elder son of the lady told the witness that his mother was assaulted by his father with a stem. P.W.12 is not aware of either the name of the lady or the name of the child who made the disclosure.

I need not burden the judgment with an elaborate discussion on the well settled position of law that unless the chain of circumstances is so complete that there is no gap whatsoever and that the circumstantial evidence excludes every hypothesis other than the guilt of the accused, circumstantial evidence cannot be the basis of conviction. The disclosures made to the investigating officer and P.W.12 are not admissible in evidence. The failure of the prosecution to examine the most important and material witness, who according to the prosecution version witnessed the assault, is inexplicable. The only circumstantial evidence pressed into service by the learned Additional Public Prosecutor is the recovery and seizure of iron stem with blood stained. Both the panch witnesses to the memorandum and seizure did not support the prosecution. The only evidence of probative value is the evidence of the investigating officer who has deposed that blood stained stem was recovered from the house of the accused.

Concededly, the deceased did suffer injury in her matrimonial home. Indeed, it was the accused alongwith others who

admitted the deceased to the hospital. The evidence on record may raise a disturbing suspicion. However, suspicion, even a grave suspicion, cannot be the basis of conviction. The evidence of the Investigating Officer on recovery is too fragile a piece of evidence to bridge the gulf between suspicion and proof and to complete the chain of circumstances which would satisfy the conscious of the Court that the innocence of the accused is not a reasonable possibility.

In the teeth of the evidence on record, I am inclined to give the benefit of the doubt to the accused.

The judgment and order impugned is set aside. The accused is acquitted of offence punishable under Section 304 Part-II of the IPC.

The bail bond of the accused shall stand cancelled.

The fine paid by the accused, if any, be refunded to him.

The appeal is allowed and disposed of accordingly.